The Senate Parliamentarian

One interesting facet of the health care debate is the political authority being wielded by civil servants. For example, every time a new version of the legislation is proposed, there is a pause while the Congressional Budget Office (CBO) determines how much the plan will cost. This “score” ends up being quite important, as many Senators will not support a bill that costs more than a certain amount. Nevertheless, they are not in a position to challenge the CBO’s numbers, as their independent determination would be dismissed as nothing more than politics.

Things are more ambiguous with respect to legal interpretation. The Attorney General would take some political heat if he rejected an opinion of the Office of Legal Counsel (OLC), and the President would take even more heat for rejecting the legal views of the Justice Department. Nevertheless, it would not be beyond the pale for that to happen because the political costs might be tolerable, in a way that would not be true if a President or Attorney General tried to defy a federal court order. The latter reflects a constitutional principle and the former does not –probably because it is an intra-executive-branch dispute. (Of course, the OLC is led by a political appointee, but until recent years it was seen as a nonpartisan institution.)

How does the Senate fits into this equation? Rulings on Senate procedure are normally made by the parliamentarian, a civil servant, who advises the presiding officer about what should be done. The presiding officer is formally free to disregard that advice, but the Vice-President has not exercised his authority to do so since 1975. One could say that this abdication to the parliamentarian is now so settled that a contrary action should be deemed out of bounds. I am not clear, though, about the political costs of rejecting the parliamentarian’s advice.

The reason I raise this point is that, if the Senate Democrats use the reconciliation process to pass health care, the parliamentarian could become a household name. (He’s Alan Frumin, and has been in office since the 1990s). If he makes some favorable rulings on the points of order that the Republicans are sure to raise, that will put Joe Biden in the hot seat. Will he feel bound by those rulings? Or will he overrule any decisions that mess up the President’s proposal by excluding them from reconciliation and subjecting them to the sixty-vote cloture rule? And if he does that, how will the country react? Will anyone care?

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

BDG is right that the previous parliamentarian, Bob Dove, was fired by the Senate leadership (quite wrongly, in my view). But in fairness, it should be noted that Frumin had been working in the Senate parliamentarian’s office for years before that and, at the time, was next in line for the job. And Dove was fired by Lott, not Frist.

Gerard: I believe that there is another procedural rout that one could take. The chair could adopt the parliamentarian’s ruling and someone could then make a motion to appeal the decision of the chair, which would put the question to the Senate as a whole for a vote. If I recall correctly, this vote would be by simple majority, is not subject to filibuster, and cannot be appealed.

(Note: when I work in the Senate after college, I had to learn a fair amount of it’s procedure but it’s been a while, I’ve forgotten most of what I knew, so I may have the precise procedure for appealing the decision of the chair wrong.)

Just to clarify the process, the parlimentarian only advises the presiding officer of the correct procedure. The actual ruling is made by the presiding officer. Nats is also correct about the appeal procedure.